A California statute made it a criminal offense for a person to "be addicted to the use of narcotics." Lawrence Robinson was convicted under the law, which required a sentence of at least ninety days in jail. A state appellate court affirmed Robinson's conviction on appeal.

Question

Was the California law an infliction of cruel and unusual punishment prohibited by the Eighth Amendment?

In a 6-to-2 decision, the Court held that laws imprisoning persons afflicted with the "illness" of narcotic addiction inflicted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The Court likened the law to one making it a criminal offense "to be mentally ill, or a leper, or to be afflicted with a venereal disease," and argued that the state could not punish persons merely because of their "status" of addiction. The Court noted that the law was not aimed at the purchase, sale, or possession of illegal drugs.

The present case, Robinson versus California, is of challenge to and attack upon Section 11721 of the Health and Safety Code of the State of California essentially because we feel that it is a denial of equal protection and due process in that it punishes a status rather than an act or omission, that it punishes an involuntary status, that it punishes a status of physical and mental illness, that it is vague, indefinite and uncertain upon its face, that double jeopardy is inherent in any crime of status and certainly in this -- the present one and that this statute is unwarranted and unconstitutional infringement upon the freedom of movement, that it is ex post facto and that it imposes cruel and unusual punishment.

Now, because our case is essentially an attack upon the law itself, the most crucial fact we have before us is the nature and the content or the necessary and implicit application of this law.

However, because we have -- aside or collateral issue or a secondary issue challenge also the search and seizure aspect of this case under the rule of Memphis, Ohio, the recent decision of this Court and because we also feel that under Thompson versus City of Louisville, there is an adequate evidence to sustain the conviction or in fact no evidence at all and hence a denial of due process.

The facts of the case will begin with the arrest itself.

On a chilly or cold night in February of 1960, the present appellant was riding as a passenger in the backseat of a car accompanied by his lady friend and other party named Banks and his wife were in the front seat, Banks being the driver.

The arresting officers testified that they stopped the vehicle because of an absence of rear license plate illumination.

We feel that the facts as testified by the arresting officers, negative of their excuse for the stoppage and that they actually presented three or four different reasons.

Secondly, we said that there was a car that driving slowly upon a dark unlit street and finally that they -- that their -- the territory in question had a reputation for person action and -- interesting also that these officers were not traffic officers, though their original justification, the one accepted by the Court was a traffic stopping.

They were not traffic officers.

They're not in a traffic car.

No citation for the traffic violation was given.

Nothing was said to the -- to any party about driving too slowly, and this is admitted.

And as soon as the stopping took place, they began actually a search of the parties involved to see if they were narcotic addicts of which, they had no indication prior to the stopping of the vehicle.

So, since they were felony officers and were not traffic officers though we -- we do not question the right of any officer to make a traffic stopping or arrest.

Since they were not traffic officers and did not have anything to do with traffic and stopping the car, we suspect that we have here the typical arrest, aroused arrest for the purpose of search to find whatever they might have found.

In fact, one of the officers testified that when the driver Banks got out of the car, he shined his light about this person to find whatever he could find.

And this of course is an admission of a general ex -- search to see what evidence of any crime might have been there present.

But leave that as it may, upon the stopping, Banks left his vehicle and -- and met the officer halfway.

And at this point, although it was a cold night of February and even of course the California nights are cold generally, certain in the month of February, this -- this young man obligingly had his -- no jacket on and his shirt sleeves rolled up so the arresting officer could see a single mark upon one of his arms, the right or the left as the case may have been.

Justice Potter Stewart: Is that the driver or the petitioner?

Mr. Samuel Carter Mcmorris: It was the driver.

Justice Potter Stewart: The driver, not the petitioner.

Mr. Samuel Carter Mcmorris: Not the petitioner.

Based upon the seeing of this single mark, the officers made an arrest.

And then having made an arrest, they ordered the other three occupants from the car, searched the car and then searched the three other occupants.

In the case of the present appellant, they had him take off his jacket, rolled up his sleeves and then went about him with their -- with their flashlight.

They state, they also checked his eyes comparing it with one with the partner, the other officer.

This was denied by the appellant that his eye was so shady.

But any rate --

Justice John M. Harlan: This was all on the street?

Mr. Samuel Carter Mcmorris: I beg your pardon?

Justice John M. Harlan: This was all on the street?

Mr. Samuel Carter Mcmorris: All on the street, yes, public street of -- of the City of Los Angeles.

And -- so after having talked to the appellant, he had said that he admitted having used heroin some time in the past.

And several weeks ago or at least several days ago or previous Wednesday and he denied the admission but -- but they state that he did admit having used heroin upon at least one occasion on 54th Street in the City of Los Angeles.

And -- so, based upon this admission plus having seen scar tissue in -- in the arms of this appellant after having ordered to remove him his coat, he, like Banks, was also arrested and charged with -- with the offense of being a user under the influence of or addicted to the -- the drug in question or -- or a narcotic drug, the -- the actual which we granted.

Now, the testimony, the only testimony on the trial which showed or intended to show any narcotic use at all was on a police officer who was attempted to be qualified as expert.

The respondent says he was clearly qualified as an expert.

But because narcotics addiction is what is, that's a serious question in my mind as whether or not a police officer has distinguished from a doctor or nurse or something of a medical nature is -- is ever really qualified to tell whether a person is a narcotic addict or not.

This of course is -- is a question of arguable thing.

We cert -- we don't rely upon it.

But the only evidence was that of a police officer who stated that this appellant was not under the influence, was not an addict as far as he could see and he relies solely upon the use as shown by some marks on the man's arm.

Now, of course, the marks themselves are stated to have been from 3 to about 20 days old from one arm from 3 to 10 days and other arm 15 to 20 days as I recall it.

Of course, the appearance of the marks in the arms could not show where the narcotic had been injected.

And of course, we have the rule of venue.

I think generally certain in California on the case that we have cited that venue or the place where a crime was committed whether its murder or the injection of a narcotic must be shown.

So the expert did not rely upon either influence or addiction.

The court nevertheless instructed upon it and admittedly unproven aspect of the law, addiction as well as upon use.

So we here have a conviction, we did not show clearly to have been either for use or for addiction.

We know this more than the other, we must assume so because the court did instruct the jury that they must all find either use or addiction and not six days that he was user and the other six that he was an addict.

We cannot know which it was the jury found since the prosecution did not elect between the two of the several counts of Section 11721.

And so we -- we must of course challenge the -- the conviction under both grounds since -- since the -- we have no such election.

So then the -- there was no evidence of the place of use except an admission on the part of the -- the appellant himself who denied the admission but it was said by the officer to have state that he used heroin at his arrest and -- and while he was being interrogated by the investigating officer that he had used heroin in the City of Los Angeles sometime before.

This was, of course, a completed crime not in the presence of the officers and that it took place on Wednesday prior to the -- to the arrest.

So that is essentially the facts of the case, the arrest, and the evidence introduced.

The appellant denied that he ever used narcotics explain marks all over his body, having been occasion by oversea shots which never got over.

The young lady with him and he both stated that Banks had a jacket on and he was forced to remove his jacket the same as -- as of this -- this appellant had been and that his mother also testified explaining the marks all over his body, jury to show that he had marks on his back and chest and breast places and not just on his arms of a dark splotches which he -- which he testified with the same as though in his arms.

Chief Justice Earl Warren: What was that -- what was that?

I didn't understand that.

Mr. Samuel Carter Mcmorris: The -- he revealed, he took his shirt off and showed the jury, he had dark splotches all over his body, not just in his arms and places where others, he first wouldn't be taking narcotics.

And it was no claim these others were narcotic marks but were in generally in evidence.

And the jury had acquired a magnifying glass before they could be satisfied that the marks have shown in the pit of the arms wherein fact narcotic marks.

However, his marks --

Justice Potter Stewart: Mr. McMorris --

Mr. Samuel Carter Mcmorris: I'm sorry.

Yes, sir?

Justice Potter Stewart: He is alleged admission of having taken narcotics in the previous Wednesday, how many days before the arrest was the previous Wednesday about?

I mean what -- when was the arrest?

Mr. Samuel Carter Mcmorris: Yes, this was a Friday.

Justice Potter Stewart: Friday?

Mr. Samuel Carter Mcmorris: That was Friday (Voice Overlap) --

Justice Potter Stewart: Some 48 hours before it?

Mr. Samuel Carter Mcmorris: Yes, at least that.

Justice Potter Stewart: I'm asking that question because it's -- I don't know if it's entirely clear in the record whether he was found guilty under that -- that part of the statute that proscribes the use of narcotics or that part which requires -- which proscribes being under the influence of narcotics or this third part being addicted to narcotics.

Is -- is it clear as to which one of those three?

Mr. Samuel Carter Mcmorris: Well Mr. Justice --

Justice Potter Stewart: He was convicted of?

Mr. Samuel Carter Mcmorris: Stewart.

As to -- as to the influence, the court exp -- expressly rejected that and that it was -- the court expressly charged the jury that it was not influence, no influence has shown.

It had to be either addiction or use.

The court did instruct as to those two aspects of three prolonged statute.

Justice Potter Stewart: Both, addiction and use.

Mr. Samuel Carter Mcmorris: Addiction or use.

Justice Potter Stewart: And there was evidence before the jury that he had admitted the use some 48 hours before the arrest that he admitted that he had used them some 48 hours before the arrest?

Mr. Samuel Carter Mcmorris: Yes, there was admission --

Justice Potter Stewart: That was before the jury?

Mr. Samuel Carter Mcmorris: -- before the jury.

Justice Potter Stewart: So presumably the jury could've convicted him either of having been a user, having -- having in fact used them or -- or being addicted to them, is that correct?

Mr. Samuel Carter Mcmorris: That is true Mr. Justice.

Justice Potter Stewart: And there's no way to tell if the jury's verdict could have done?

Mr. Samuel Carter Mcmorris: No, it could be either way.

The court simply instructed that they had to go all one way or the other, not divide as between the two aspects of the law which is charged this point.

Justice Potter Stewart: Because as I suppose, I looked at one way if there was evidence of an actual use of narcotics, that's a little different difference from conviction on the basis of status, isn't it?

Mr. Samuel Carter Mcmorris: Yes, it is.

It is.

Justice Potter Stewart: And I suppose you could -- if he had just did, there were just evidence that he was a user, was no evidence of actual -- of an actual of act of using then you'd have a -- have a status conviction.

But if there was evidence of -- of an act of using, then it would be something or somewhat different from a conviction based upon the status alone.

Mr. Samuel Carter Mcmorris: Yes Mr. Justice Stewart, the only problem is that that the judge fully instructed the jury upon -- upon addiction, so we're on the haunt of this dilemma -- of this dilemma.

Justice Potter Stewart: Yes.

Mr. Samuel Carter Mcmorris: We don't know of which we are addicted.

So of course I have to challenge both possible convictions.

Justice Potter Stewart: I understand that.

Mr. Samuel Carter Mcmorris: And as a matter of fact, I argue strongly at the trial and the transcript here that even the -- they had not contend basically that they had shown the addiction and yet we are -- and I challenge the instruction on that ground which was given nonetheless.

Chief Justice Earl Warren: Did you say there was evidence as to how he became an addict?

Mr. Samuel Carter Mcmorris: No, there was no evidence whatsoever or -- or a withdrawal symptoms as I argue that -- no showing of it all.

Chief Justice Earl Warren: Or as to -- as to how he became an addict, I'd say.

Mr. Samuel Carter Mcmorris: No, Mr. Chief Justice.

Chief Justice Earl Warren: I thought you said something about -- in the service, he was --

Mr. Samuel Carter Mcmorris: No, he simply stated that he had oversea shots and this led to a general marking upon his body of dark splotches which changed color in the light and in the dark.

Chief Justice Earl Warren: Those had nothing to do with --

Mr. Samuel Carter Mcmorris: With narcotics and such as --

Chief Justice Earl Warren: Yes.

Mr. Samuel Carter Mcmorris: -- as far as -- as far as it show.

So that's been, as I recall, consist -- is a fact of the case.

Now, because of the instruction of the court under addiction -- had the court not instruct yet on addiction, I would not have my basic approach here today, although I'm happy if the Court did so.

As a matter of fact, I'd be willing to -- to abandon or waive or withdraw from my arguments under points B and -- and C regarding the procedural denial of due process with respect to insufficiency of evidence and respect to the search and seizure.

Because to me, the crux of this case is the conviction underneath the narcotic law which makes narcotic addiction a crime.

Now, it is interesting that in only four of the States of the union as we point out from material from the alternative price annuals reports, only four of the States in the union punished narcotics addiction exclusively as a crime.

In a large number of states, approximately ten, it is punished solely as a sickness.

In the others, it is punished or it is treat, let me say or -- or treated as a sickness or punished as a crime.

So the general approach is and in California surely, it maybe approached either of the crime or under the Welfare and Institutions Code, a party maybe placed in a state hospital of some kind and treated as a narcotics addict.

We have no objection to such treatment in a voluntary compulsory and we feel that this is the proper approach.

We feel the legislature in this law took not just a why but certainly a constitutional step.

On the other hand, we have here a law which punishes out a crime the same status or condition which another law of California treats as a sickness.

In the first place, I might say in passing that it seems to me that those who are treated under the punishment aspect are denied equal protection as against those who are given the treatment under the Welfare and Institutions Code, which is purely a medical and psychiatric sort of thing.

But getting to my first major point under this that any statute which punishes a status as distinguished from an act or omission is unconstitutional.

At this point, may I call the Court's attention to an excellent article Vagrancy Reconsidered which appears in the New York Law Review, the most recent volume, it's -- it's in one of the -- the -- this -- in the January of this year's edition, Vagrancy Reconsidered by -- by the New York University Law Review which points out an answer up to the contention, though not intended to be an answer to the contends of the respondent who holds that both England and America have always accepted status as a proper ground for penalization, that the only basis of a survival, the vagrancy laws in California and of course as we'll point out later, this present law is a type of vagrancy law.

The only ground for a survival has been two centuries of uncritical acceptance by our legislatures and courts of outmoded English precedent which has been rejected by England itself.

And this is fully pointed out in this article which I mentioned that England no longer has a vagrancy statute.

They have evolved from vagrancy to -- to conduct, to disorderly conduct which is what California in our most recent legislature changed to and Illinois at the same time.

We know have two States but I think would start up -- would become a trend to get away from punishing the condition and punish specific acts of the inherent wrongness of punishing a person's condition or status is that we are here punishing the possibility of crime, is suspected intent to commit crime, even not an attempt or an act.

Normally, throughout our history or in -- in most laws everywhere, a person who's convicted of crime if he does a thing or attempts to do a thing.

We go beyond the actual completion and do punish the attempt.

At the same time, we have a constitutional mandate against even an arrest on suspicion merit.

But the vagrancy laws of which this is one permits a police officer not just to arrest upon suspicion or because a person might intend to commit a crime because of his vagrant status but he can even be convicted upon suspicion.

So we have just -- and the antithesis or antithesis of the -- of our search and seizure rule which forbids an arrest except in the presence of an actual crime or -- or proper suspicion there as.

Here, we have a conviction for the suspicion itself.

Now, under California law, it is time honor under Section 20 of the Penal Code that we must show either act or omission plus intent.

So here, we have neither act n4or omission and we submit no intent.

In that under 0.2, this is a -- this is a wholly involuntary status.

Now, the respondent assures the Court that every addict intends to become an addict.

However, I think it is clear that an addict no more intended to become that than does an alcoholic intend to become an alcoholic because he may have like to drink socially or because the person intended to acquire venereal disease because he may have voluntarily committed some other act contrary to our -- to the laws of a sexual morality.

The point I'm getting at is in -- these three things are -- are similar.

The -- a person intends to take a drink, intends perhaps to take shot of heroin or smoke a marijuana cigarette or intends to have an illicit sex act.

None of these intended to acquire venereal disease or to become an alcoholic or to become an addict.

As a matter of fact, the intent does not go beyond the initial voluntary act which is not the status which -- which comes from the repeated series, perhaps the voluntary acts.

No one, I submit, intends to become an addict.

And I think this is clear from our medical discussion which we have and present here the authorities, both from Europe, Dr. Hesse or Hesse, a renowned German physician and two American authorities, American doctors Mower and (Inaudible) and it is uncontradicted that we do have a peer, a condition of mental and physical illness.

As a matter of fact, the respondent admits or the appellee admits that this is a mental and physical illness and then goes on to say, however we may punish.

The statement properly punish a mental and physical illness and compares it with -- with alcoholism or -- or drunkenness let's say which -- which appellee says he'd be punished, compares it also with kleptomania, the sickness requiring one to steal and with the arsonist who may be ill as distinguished from one or perhaps he's burning his house to collect insurance.

I -- in a recent speech by the Judge Mirto of the New York bench and California in -- in San Francisco under a conference he had at a baffle time this Court granted this appeal in this case in November of last year, they had a conference on alcohol and American civilization.

Judge Mirto stated that he feels that to treat alcoholics as criminals is not only contrary to good social policy but it's unconstitutional and made with respect to alcohol to the point of drunkenness, the same contest that which we are making here with respect to narcotics addiction.

We of course hardly agree with the judge and feel that -- that a recent development in our history of our jurisprudence in this development will be that even certain things as kleptomania and arson or whatever, if it can be shown to be actually the product of mental illness as distinguished from a voluntary act will be an illness to be treated so and not a crime.

Our jails are overcrowded with people who voluntarily and under their own control have done such thing as commit arson or rob, and such people properly belong there.

But if a person does in fact commit the act of theft or an act of arson or any act because of a -- a probably medical condition such person, I think, should be treated and not punished and certainly in the case of alcoholism or a narcotics addiction even more so than the -- than -- than the other categories perhaps because these are clearly and totally mental and physical illnesses which -- which cry out loud for help, for treatment, for hospitalization rather than for -- for the type of punishment which -- which we here apply.

Now, we are not alone and respondent assures the Court, appellee assures the Court that we cannot -- have not present any case in which status has been held not a proper subject for legislation.

However, in the case, the Belcrasto -- Belcrasto case from New York, People versus the Belcastro which is cited by both sides, the court throughout a gangster type vagrancy statute, the New York Court because it held that this was unconstitutional.

In Lanzetta versus New Jersey, this present Court took the same approach to a New Jersey statute.

Recently in California, our State Supreme Court in the Newbern, the famous, now famous Newbern case throughout the common drunkard section of our vagrancy laws which is point 11 and -- of which -- the law of which narcotics addiction was originally point 12.

Originally, this law was a part of our vagrancy law and was later deleted and put in the Health and Safety Code as a specialized vagrancy ordinance that give a specialized treatment.

The vagrancy or status aspects remain.

But in -- in Newbern and California, Section 11 of 647 of the -- of the Penal Code which in 1961 was changed from vagrancy to disorderly conduct, the appellee, will all the sudden completely solve the problem I think.

The Court held that the terms common drunkard was too big, indefinite and uncertain to constitute valid penal legislation.

One of the ground given was that the degree of drunkenness as I recall the -- that the legislature had in mind was not clear from the terms common drunkard.

And under our heading that the present law is vague, indefinite and uncertain, we make a similar holding with respect to addict.

And certainly, the term "addict" of all our three terms which are use one, two be under the influence of and three, be addicted to a narcotic.

All three are subject to -- to disagreement among reasonable minds particular with respect to -- to addict.

Consider this, the legislature in -- in a section of the Health and Safety Code which we cite by typographical error, we had it wrong and the appellee was kind of give the Court the -- the correct section.

The Legislature of California has legislated that a -- an addicted person is one who has a compulsion to use a substance, which to me is the only proper definition of an addiction as distinguished from habitual use or a single use.

In other words, not merely habit or custom but a compulsion, a physical compulsion which is explained by the doctors, "As actually such a physiological changed that the body will not function normally in the absence of the substance of a narcotic.

When you reach this part, you have a clearly disorganized body which if it has a -- in a proper withdrawal may collapse or even die and this is the kind of treatment we get in the cold turkey California penal treatment of narcotics addiction which every doctor quoted here and certainly generally state must be given medical treatment or -- and a hospital situation, a general taping off or a deep sleep treatment or the application of methadone in order not to have to go through this terrible violent withdrawal which we feel is such abstinence of the application of what we know about the medicine psychiatry that it is in fact cruel and unusual punishment for the condition of addiction which a person is found.

Now --

Justice John M. Harlan: Has this -- had there been many prosecutions under this section of the statute?

Mr. Samuel Carter Mcmorris: Everyday.

It's constantly.

In fact, this is the third such case I had in --

Justice John M. Harlan: Never been the addiction -- the Addiction Clause has never been before the California Supreme Court?

Mr. Samuel Carter Mcmorris: Well in this case, it was taken there by way of writ -- of prohibition of habeas corpus and they denied --

Justice John M. Harlan: How is it could you -- you say there'd been many prosecutions, how is this statute of -- enforce, I would suppose -- do you have cases where a man has been convicted of addiction, served for 90 days and let out and picked up the next day again and convicted again because he hasn't abandoned his addiction?

It's a continuing condition addiction and a very different one to get rid of and I was wondering as a practical matter, how this statute is enforced?

Mr. Samuel Carter Mcmorris: Well as a practical matter, Mr. Justice Harlan, the police officers know these people and every time they see them, they rousted around and if they see any evidence of a mark or these old scars, they are likely to go right back in.

Justice John M. Harlan: Are there cases where the same individual, same addict has been prosecuted over a series of prosecutions for the same addiction?

Mr. Samuel Carter Mcmorris: There are cases in which -- which I personally familiar and some which I have handled because I have handled a great number of narcotics cases but I don't have the -- the --

Justice William O. Douglas: Does the State recognize the plea of double jeopardy?

Mr. Samuel Carter Mcmorris: Well in our State, we do have this in our Constitution as -- as a plea.

Justice William O. Douglas: No, I mean in -- in this type of case?

Mr. Samuel Carter Mcmorris: No, it has -- it has never been in fact made to my knowledge.

Justice William J. Brennan: But you've represented some municipality, not the same you can say that you have represented some who had convicted in one municipality or county under the statute, had then been prosecuted in another also for addiction?

Mr. Samuel Carter Mcmorris: Well, I would be using the same colloquy because I was in Los Angeles County.

Justice William J. Brennan: But you attached such case?

Mr. Samuel Carter Mcmorris: Yes Mr. Brennan.

Justice William J. Brennan: And didn't you interpose double jeopardy?

Mr. Samuel Carter Mcmorris: No.

At that time, I didn't because I was newer in the field.

This is -- I gradually evolved or developed in -- into my approach into this plea.

Justice William J. Brennan: Well, do you know whether the -- that plea has not been honored when made or has it ever been made?

Do you know?

Mr. Samuel Carter Mcmorris: Well as a practical Mr. Justice Brennan, the -- the officers will have or will say to have a fresh mark so that although the person is to punish for the continuing of -- of continuing addiction -- addiction, actually, there is some evidence of continued use.

But if -- but my --

Justice William J. Brennan: You get him --

Mr. Samuel Carter Mcmorris: -- contention --

Justice William J. Brennan: -- for a new use you mean?

Mr. Samuel Carter Mcmorris: Yes, but my contention is that -- that their -- as indicated by the -- by the appellee, they're really trying to get addiction conviction because it's hard to prove use or influence so as a practical matter.

It is so likely the vagrancy where we have to prove the condition by a single act that proving the condition of addiction by another mark in the same spot where a person was previously --

Justice William J. Brennan: Exactly.

May I ask Mr. McMorris, at what stage of this proceeding did you raise any constitutional about the claim?

Mr. Samuel Carter Mcmorris: On the trial as I point out in my -- in my brief, on the trial, on motion for new trial, on my appeal to the -- to the appellant as part of the Superior Court?

Justice William J. Brennan: You refer us in the record where you raised this trial?

Mr. Samuel Carter Mcmorris: Yes, I try to find it quickly here.

On page 6 of my brief, opening brief, I state that -- that I made a motion for new trial.

The trial there will specify all the grounds here brought before this Court which is this --

Justice Hugo L. Black: Where is the motion?

Mr. Samuel Carter Mcmorris: The motion should be a part of the record of the --

Justice William J. Brennan: Well, don't waste your time as -- take your time looking for it but --

Justice Byron R. White: Is that (Inaudible) you raise before the trial?

Mr. Samuel Carter Mcmorris: No, the -- the Court will find my argument throughout the -- throughout the transcripts of record in the --

Justice Hugo L. Black: Oh, I'm sure that is in this brief.

See when you raised the federal question in your argument to the Court.

That's one of the best motions.

I don't find the motion here and stuff.

That's how we looked it.

Justice William O. Douglas: Must be 61, notice of appeal.

Justice John M. Harlan: Does the State contend that the federal question is not raised?

Mr. Samuel Carter Mcmorris: No, they haven't -- make no such contention.

As a matter of fact, the -- the appellant from the Supreme Court clearly recognized it in the State of a higher courts and it is also determined the question and point out (Voice Overlap) --

Justice John M. Harlan: In the higher state courts?

Justice William O. Douglas: Could have been in the higher state courts but I have clearly made it federal and State and the -- I do also point out in -- in my -- in my opening brief at least by the time of --

Unknown Speaker: (Inaudible)

Justice William J. Brennan: Mr. McMorris, is that -- this is not an unusual procedure.

Your review here is in the Appellate Department of the Superior Court not in -- in intermediate Court of Appeals, isn't it?

Mr. Samuel Carter Mcmorris: Well, Mr. Justice Brennan that is the only appeal we have in this (Voice Overlap) --

Justice William J. Brennan: I know but the point this is not, as I recall, previous cases from your State, when you go to the Appellate Department of the Superior Court, you get in effective trial de novo.

Mr. Samuel Carter Mcmorris: No, it is an appeal.

Justice William J. Brennan: -- on the record?

Mr. Samuel Carter Mcmorris: It is an appeal.

Justice William J. Brennan: It is an appeal?

Mr. Samuel Carter Mcmorris: It is clearly an appeal.

Justice Byron R. White: So this is an appeal for the Municipal Court to --

Mr. Samuel Carter Mcmorris: From the -- this Court on the record -- the municipal court.

Justice William J. Brennan: But it's not a -- it's not trial the novel on the record?

Mr. Samuel Carter Mcmorris: Not at all.

This is an appeal, a standard appeal.

And it's a higher state court in which the appeal as a matter of right but we can't go by habeas corpus prohibition or certiorari other -- other roots to the higher courts as I did in this case to leave no stone unturned.

Have we had a previous experience in Lambert versus California not done so and the court has its justice.

So -- now, the -- ex po -- ex post facto aspect, the appellee contends that as to our particular appellant, we do not show that the law was ex post facto.

We feel, however, that once having challenge a statute squarely as applied tools a particular appellant, the such appellant may then show the entire scope of the laws and the constitutional standpoint.

And this is the holding of the implied boarding of Thornhill versus Alabama and Lanzetta versus New Jersey and that we did not have here a just moot case, we had a case in which as the law was in fact applied to this appellant and which it did go beyond its actual application to show what the law consisted of upon its face.

This ex post facto aspect occurs on the face of the law.

And that it punishes person whatever addiction and clearly because of the change in our -- in our approach to a narcotics addiction within the lifetime of most of us or many of us and because it was legal and because there is no known cure for it, there -- there are many who will be subjected to this particular law who either acquired the condition which we know not -- not how to treat prior to the law or who may have been even acquired during the war with many of our voyage did acquire and appellate going to overseas having to take narcotics injected from an area and other things.

It then become a criminal automatically and it will come out in uniform and to state of life.

And this kind of thing seems to be is ex post facto.

I repeat, again, that I feel that the cold turkey treatment which is a necessary and adherence approach under -- under the penal treatment of this -- of this condition which leaves an addict to suffer and nearly die and sometime in fact die.

Justice Potter Stewart: Well, that's completely withdraw, is that it?

Mr. Samuel Carter Mcmorris: Yes.

And there have been many cases, no one -- in which person have -- has died because I personally know of in -- in Los Angeles.

And in every case, they suffer untold agony which all happy, we could make judicial notice of, have which could be tapered off or it could even a deep sleep treatment or they get tapered off or they can given some other drug so that they will at least become their physical selves again without having to suffer solidarity as -- as they do.

Justice William J. Brennan: Mr. McMorris, may I ask at page 112.

This is what I was looking for.

I note here that your appellate part says, No appeal lies in the Appellate Department to the District Court of Appeal or the Supreme Court yet habeas corpus lies to test the constitutionality of the section in question.

We would welcome such a test.

Now, did you proceed by habeas corpus?

Mr. Samuel Carter Mcmorris: Yes, Mr. Justice Brennan.

Justice William J. Brennan: Well, how did we get to this case here directly from the Appellate Department rather than from whatever action was taken under habeas corpus?

Mr. Samuel Carter Mcmorris: Well, and -- and as those steps the -- these were extra ordinary remedies and not in the usual rule of appeal.

They're extraordinary writ.

Habeas corpus I think as a provision habeas corpus of certiorari and mandate of different ways --

Justice Byron R. White: Well, why wouldn't -- why is it the habeas corpus in the action on it in the record?

Mr. Samuel Carter Mcmorris: Albeit, in spite by both parties simply as a -- as a decision of the court and -- and we do have the citation that it was --my motion was denied without comments as to the appellate -- as to the District Court of Appeal and of California Supreme Court in which I raised very brief I have here essentially was presented to those two levels of court as it have been to the Appellate Department of the Superior Court and based on the -- dismissed it without counting and -- and because the time that not run from my appeal to the -- to appeal from the Appellate Department and because it is a higher state court to which I could take an appeal undistinguishable in the next door and a remedy, I therefore appeal in this Court haven't given the California courts its opportunity to consider having it desire.

I couldn't appeal to them but I did.

It goes to the matter I could by a way of the writ of habeas corpus and or provision.

Justice Tom C. Clark: You see Robinson was serving his sentence under his conviction, is that right?

Mr. Samuel Carter Mcmorris: At present time?

Justice Tom C. Clark: Then you file a habeas corpus, is that the way it goes?

Mr. Samuel Carter Mcmorris: Yes, at that -- at that time, he -- he began to service sentence.

I filed habeas corpus writ in the two levels of state court, all the way to top.

And by then -- then he was out on -- on probation.

And it's done in -- while on probation subjected to the Naline testing program in which we -- they inject chemical Naline say in passing in order to see if a person has resumed using the drug.

And at that point, when I actually repeal to this Court, he was on probation but still subject -- subject to the punishment of -- I mentioned both the -- for two years under control probation officer and -- and subjected to the Naline testing program.

Unknown Speaker: But he's still on probation?

Mr. Samuel Carter Mcmorris: He's still on probation at this time.

I think that completes my fully argument if there are no questions --

Chief Justice Earl Warren: Very well.

Mr. Doran.

Rebuttal of William E. Doran

Mr. William E. Doran: Mr. Chief Justice, may it please the Court.

Mr. McMorris stated the appellant herein was convicted of 11721, Subsection of Health and Safety Code of California.

And also has he stated, the cause went to the jury only on two issues, use and addiction under the influence of that aspect of the -- of the Section.

The court took from the jury my instructions.

I may say first getting directly to Mr. McMorris his main contention of purported unconstitutional status.

This addiction statute first became criminal in California in 1929 when it was added to the Penal Code as part of the Vagrancy Section.

In 1939, it was deleted from the Penal Code and the Vagrancy Section and put into the new Health and Safety Code which is connected I think at that time.

Since then, it has remained in the Health and Safety Code and has been amended from time-to-time in minor details.

In the briefs, both appellant and appellee have referred consistently to vagrancy probably because it's the closest or the -- the most usual, shall we say, statute under which a status is involved.

Now, its appellee's contention that when this Section was removed from the Vagrancy Section in California and put into the Health and Safety Code, the only remaining aspect of vagrancy or even comparison to vagrancy that remained was the aspects of its status.

And it is our contention that thereafter, the ordinary ideas of vagrancy such as a -- a tramp or a ne'er-do-well or a wonderer and such of the many common known types, we are not involved with the situation like that at all.

We are involved with a man who is putting a foreign fire into his veins, and it bears no relationship that we contented.

There is no further relationship to vagrancy except -- except the peculiarity status.

Now, counsel has cited many of these vagrancy cases and of course we have cited them, too.

And he has referred to two particularly Lanzetta against New Jersey and Edelman against California.

The Lanzetta case involved vagrancy decided by this Court and it struck down the -- the statute but not on the ground alone that it punished the status.

They struck him down because it was vague and indefinite in trying to define the status, it was going to punish.

The same in Edelman which this Court having taken jurisdiction didn't decide the case on the merits but they were two dissenting opinions that went to the merits.

And the same thing shall I say happen there.

The California Vagrancy Statute was attacked but -- on a very peculiar circumstances by which California or the City of Los Angeles in this instance utilized a Section 6475 of the Penal Code which proscribe, lewd and dissolute conduct making such person a vagrant, that's the statement of the statute.

However, in that case, the Edelman case, they didn't plead lewdness.

The pleading went only to dissolutes.

And it was an unfortunate situation no doubt because what they were trying to reach was something that the word "dissolute" as the two dissenting justices here held just shouldn't reach.

And peculiarly enough and about the same time, the Appellate Department of Superior Court of Los Angeles from which the appellant of -- from which the Edelman case came, decided another case unreported case of People against Dragna where they assumed practically the same position as assumed by the dissent in this Court to the effect that lewd and dissolute were used in the statutes anonymously.

And meant -- they meant the same thing and as you couldn't state an offense merely by the word "dissolute".

Statue was aimed at lewdness.

Chief Justice Earl Warren: Mr. Doran.

Mr. William E. Doran: Yes, Your Honor.

Chief Justice Earl Warren: Could this -- could this statute be a fact on vagueness in light manner because there's no distinction made between whether this was voluntarily done or involuntarily done?

I mean, the status was acquired voluntarily or involuntarily.

I think it's known that there -- that there are people who have acquired to have it in hospitals due to treatment and -- and for some disease and when they get out, they're addicts just as much as if that they've been hoodlums who had -- who had gone into it.

This statute makes no distinction between that -- between those situations does.

If he's an addict he's --he's subject to go to jail, isn't he?

Mr. William E. Doran: I would say not, Your Honor.

The statute contains a specific exemption for narcotics administered by some with license to so administer and that would be the position of one who -- who became an unfortunate addict due to medic -- medical reasons.

Chief Justice Earl Warren: Yes, but sometimes, I -- I'm taking the position where a doctor has treated him for a disease or -- or some great pain of some kind and as administered narcotics and then when -- when that condition is cured, he -- he turns him loose and -- and he is an addict and -- and he can't get anymore -- anymore narcotics from a doctor but he's an addict just the same.

Mr. William E. Doran: Well, Your Honor, it would be difficult to conceive.

It would appear to me for a doctor to -- to release a man and push him up without medical help if he needed that medical help as to his addiction.

That's the only way I can differentiate.

Chief Justice Earl Warren: If the only help he'd need would be to keep him in narcotics then maybe he's other condition has been -- has been cured up.

Mr. William E. Doran: Well, I -- I think under those circumstances, he would be -- he would fall under the exception on -- of the statute that the narcotics would be administered by a --

Chief Justice Earl Warren: I see.

Mr. William E. Doran: -- competent doctor.

Yes, Your Honor.

Chief Justice Earl Warren: Yes.

Justice William O. Douglas: If in terms of state power, would you think a State would have authority, constitutional authority to punish other things that to which people were addicted?

I've known people who thought it impossible to stop smoking cigarette.Is there a constitutional power for that be made a crime?

I know it hasn't been here but --

Mr. William E. Doran: Well, I think there Your Honor we're getting to what would be a reasonable exercise of police power and they would appear to be a vast difference between narcotics such as heroin being injected in the veins and smoke being taken into the lungs.

Certainly, there is a comparison.

But I think we're getting to police power there rather than what we're involved with here.

Well, on that Your Honor, a question was asked by Mr. McMorris.

Justice Potter Stewart: Before you go on, your own --

Mr. William E. Doran: Yes, sir.

Justice Potter Stewart: -- your own Supreme Court of your status, following up Mr. Justice Douglas' question that is held that the -- the State does not have the power to make it criminal offense to be common graphic, isn't that correct in the Newbern case?

Mr. William E. Doran: In the Newbern case Your Honor that was not based as I recall upon police power.

It was based --

Justice Potter Stewart: That was based on vagueness?

Mr. William E. Doran: Right, Your Honor.

The word "common" was declared to be too vague and indefinite to permit the -- the defendant to recognize whether it was going to affect the law or not.

Strictly on that and it did --

Justice Potter Stewart: Had to be an uncommon graphic, is that it?

Mr. William E. Doran: Well, we have those two, Your Honor.

But it didn't go to -- to the aspect of status at all.

The Newbern case, it went merely to the vagueness and indefinite of the word "common.

But getting back to the other question that was asked of Mr. McMorris, as to the possibility of a person's serving 90 days under this -- under a conviction under the statute, then coming out and being picked up again immediately for addiction.

I might say that such would be impossible under the methods of prosecution at least that I'm familiar with in California.

For this reason, all of these addiction prosecutions are based upon circumstantial evidence or mainly they are based upon circumstantial evidence of the scabs and marks that appear from the body of the defendant, usually on his arms over the veins.

The expert testifies that he sees so many marks and he -- he explains how old these scabs are and how old the marks are and establish is that as a present condition, the person is addicted and a current user.

Now, if a person is in jail for 90 days, I am sure the reading of the expert testimony of the gentlemen who testified in this page at page 54 of the record, Mr. Lindquist, but I'm not going to read with but it will reveal that by the time a person has served 90 days in jail, all current marks will be removed from his body and he just couldn't be convicted again without acquiring new marks or by the testimony that it wasn't true one or the other.

Just we just -- the prosecution just could not establish the circumstances indicating his addiction.

Justice William J. Brennan: Well, are you telling us then that in fact the persecution withdrawn the -- or using the --

Mr. William E. Doran: No, Your Honor.

There are two aspects --

Justice William J. Brennan: Well, doesn't it come down to that -- if -- if I understood you, if there's been one conviction under this, you'll not prosecute again unless there's evidence of a substance use?

Mr. William E. Doran: That would be necessary, yes, Your Honor.

That it couldn't be any other way.

Justice William J. Brennan: Well then that's -- isn't that second prosecution, a prosecution from user -- for user rather than addiction?

Mr. William E. Doran: It could be either Your Honor.

Justice Byron R. White: But what -- what does -- what does using a word addiction added to the -- to the user turn?

In this case, it was user addiction with the jury on that basis.

Is really the addiction had anything to do with user turn?

Mr. William E. Doran: In this case Your Honor, I would say no, it didn't because we --

Justice Byron R. White: Would that be in many cases?

Mr. William E. Doran: Yes, Your Honor.

In --

Justice Byron R. White: (Inaudible)

Mr. William E. Doran: -- in many cases, it's indispensable for this reason under a case of People against Garcia which is cited in -- in I think Mr. McMorris' brief.

It was held that to convict for use, you must establish venue which in California would be in the particular county in -- in the municipal court.

Now, as a practical matter, there are no -- you -- you wouldn't charge a person with use if you saw him using it.

Because if you saw him using it, you would have found him in possession of the narcotic a felony and a lesser charge would of course be ignored.

Therefore, the only way we can prove user is by the admission of the defendant himself as took place in this case.

Beyond that --

Justice Byron R. White: To establish the right venue for it?

Mr. William E. Doran: That's right, Your Honor.

Justice Byron R. White: Is this (Inaudible) real problem?

Mr. William E. Doran: That is the big problem.

Justice Byron R. White: -- (Voice Overlap) -- truth-wise in the courtroom, there is no difference between proving user or addiction?

Mr. William E. Doran: No, not -- not -- if we have the proof of both as we maintain -- we have in this case.

But -- unless you can get an admission from the defendant that he used in the particular county or prosecution, you can't make a case on user.

Justice Byron R. White: But in this case, it wouldn't make any -- the -- the addiction did have anything to it?

Mr. William E. Doran: No, Your Honor.

Justice William J. Brennan: Well but if -- as I understand you though, if he were apprehended again after serving his term, if this conviction has sustained, you would not prosecute him unless you had some evidence which proved both venue and another user.

Mr. William E. Doran: Absolutely, Your Honor.

You would have to prove --

Justice William J. Brennan: Then I -- I simply don't understand what -- what you get out of prosecuting him for addiction on the second (Voice Overlap) --

Justice Potter Stewart: Well, let's point this that under your statute as construed by your courts, you can get a conviction if you get an expert to let him see the defendant's arm and say, "As an expert, I can tell the jury that he is an addict, whereas under the use part of statute again as construed by your court, you have to show an act of use in a particular place otherwise you have a problem of venue.

Mr. William E. Doran: Correct, Your Honor, exactly.

And for that reason, the addiction part of the statute is the most important part of it in at least 85% or 90%of the cases except --

Justice Byron R. White: It's still because of the venue --

Mr. William E. Doran: Exactly.

Justice Byron R. White: -- because the -- the addiction assumes that -- that there's going to be an active use so called.

Mr. William E. Doran: The addiction takes place in the county or in the jurisdiction where the person is apprehended.

He is apprehended as they're being addicted.

Justice Byron R. White: I understand.

Mr. William E. Doran: So the problem of venue is their met.

Justice Byron R. White: Yes, I understand that.

But it is a venue problem not a -- there's nothing else.

Mr. William E. Doran: In use.

It's a distinct venue problem in use.

It's no venue problem at all as to addiction.

Justice William J. Brennan: Well, what you're saying and I gather is that you're expert under the prosecution for addiction.

You may testify that this fellow was a user on some day subsequent for the last time he was convicted of being -- of addiction.

Without having to show that whatever -- whenever that last time occur, exactly where it was the use, is that it?

Mr. William E. Doran: Substantially, Your Honor, yes.

In other words, the expert testifies to what he sees upon the defendant's arm.

Justice William J. Brennan: Well, what -- what I'm getting at is this.

He's convicted, he serves 90 days in jail, he's picked up again on some other county.

And an expert now comes in and says "Well, since he's completed that 90 days in jail, I can tell looking at his arms that he's used the stuff again.

And then he prosecuted for addiction on non -- non-evidence as I understand that he can be convicted.

Mr. William E. Doran: Yes, Your Honor.

Justice William J. Brennan: But there has to be proof that since he served his last term, he's again used it.

Mr. William E. Doran: Exactly, Your Honor.

Justice William J. Brennan: Even though you don't have to prove where he used.

Mr. William E. Doran: Exactly, Your Honor.

Chief Justice Earl Warren: Mr. Doran, if he's prosecuted as the -- as a user under this statute, would it be sufficient to show that he had taken this narcotic once?

Mr. William E. Doran: As a user, yes, I would say.

Chief Justice Earl Warren: Alright.

Well now, would it be possible if -- to prove he was addict by just proving that he had taken it once?

Mr. William E. Doran: No, Your Honor.

I would say no.

Chief Justice Earl Warren: You have a -- you have a certain standard for addiction, do you not in the State?

Mr. William E. Doran: Well, for getting to a point that approaches the Newbern decision that has been discussed --

Chief Justice Earl Warren: Well, I -- the reason I asked is I thought -- I thought you had a -- a section of the Welfare Code 5350 which says "a narcotic drug addict, within the meaning of this article, "is any person who habitually takes or otherwise uses to the extent of having lost the power of self-control.

Any opium, morphine, cocaine or other narcotic drug is defined in Article 1 of Chapter 1 of Division 10 of the Health and Safety Code.

That's your standard, isn't it, a proof of -- of an addict?

Mr. William E. Doran: Only for purposes of -- of the Welfare and Institutions Code, Your Honor.

Chief Justice Earl Warren: Well, prosecute him.

He's prosecuted here under that under that section, is it not?

Mr. William E. Doran: No, Your Honor, under the Health and Safety Code.

Chief Justice Earl Warren: Well, the Health and Safety --

Mr. William E. Doran: That's right.

And may direct -- invite Your Honor's attention to the case of People against Kimbley.

Chief Justice Earl Warren: What code are we under here in this case?

Mr. William E. Doran: Health and Safety, Your Honor.

Chief Justice Earl Warren: Well, this says as defined in Article 1 of Chapter 1 of Division 10 of the Health and Safety Code, that's what the -- that Section I just read.

Mr. William E. Doran: Maybe I'm --

Chief Justice Earl Warren: (Inaudible)

Mr. William E. Doran: The Section that Your Honor has referred to of the -- of the Welfare and Institutions Code, I believe is the one --

Chief Justice Earl Warren: No, it reads -- it reads this way, "A narcotic drug addict within the meaning of this Article is any person who habitually takes or otherwise is uses to the extent of having lost the power of self-control, any opium, morphine, cocaine or other narcotic drug as defined in Article 1 of Chapter 1 of Division 10 of the Health and Safety Code.

Mr. William E. Doran: I think Your Honor that the reference to Article 1 Chapter 1 Division 10 of the Health -- Health and Safety Code refers to the types of narcotics that are there in named, not the type of addiction.

Chief Justice Earl Warren: Not the -- not the -- the type of addiction?

Mr. William E. Doran: Correct, Your Honor.

Chief Justice Earl Warren: Well, is there any -- is there any definition in the other code as to what constitutes an addict?

Mr. William E. Doran: No, Your Honor.

Not to my knowledge.

And it -- and was instructed in this case, it was -- the jury was instructed merely that it's a habitual use so to speak.

Chief Justice Earl Warren: Habitual use.

Mr. William E. Doran: Yes.

Chief Justice Earl Warren: But was there any evidence to the effect that he had used it to an extent of having lost the power of self-control?

Mr. William E. Doran: No, Your Honor.

Chief Justice Earl Warren: And there's nothing in the instructions to that effect?

Mr. William E. Doran: No, Your Honor.

Chief Justice Earl Warren: It's you're position that you don't have to -- have to prove that that this Section does not apply, is that right?

Mr. William E. Doran: Correct, Your Honor.

And as I stated, the case of People against -- in the case of People against Kimbley cited at page 18 of our brief, we answer that contention made by appellant that that definition should apply and the Kimbley case indicates that it is -- that definition is for only the purpose of the Welfare and Institutions Code and does not apply for instance to this case which was a vehicle code violation.

They said that they will not utilize that except for the purposes of the Welfare and Institution Code.

It is not applicable to others.

Chief Justice Earl Warren: Has the -- has the Supreme Court established a definition for -- for a drug addict under this Code?

Mr. William E. Doran: Not other than, to my knowledge, was utilized in the instructions in this case, just a common, ordinary definition of addiction, habitual use.

Getting to the -- to the actual, factual aspects of the case, and may I say so on the light most favorable to the -- to the prosecution, this automobile was apprehended by the police department while driving down the dark street at night with no illumination on the license plate.

The driver of the automobile voluntarily got out of the car and met the policeman.

Whereas the policeman there looked for the flashlight, saw the mark on his arm and didn't arrest him then as has been contended.

He questioned him about his use of narcotics if any and the driver Mr. Banks stated that yes, he was a narcotic user.

Thereupon, he was arrested.

Thereafter, the other passengers of the automobile were removed from the automobile by his fellow officer and the automobile was searched.

The appellant here Mr. Robertson has -- Robinson as one of the passengers was on the sidewalk and the officer noticing a purported nervousness and perspiration, asked him if he used narcotics and he has thereupon stated, yes, he did.

In other words, there was a completed mission to the arresting officers as to the commission of a crime prior to any arrest.

Thereafter the admission, the officer did order Mr. Robinson to bare his arms so that he could look at them.

The officer did look at them, noticed marks and thereupon arrested Mr. Robinson.

And it's our position that in this course of events, as they transpired, never did there occur any illegal search or seizure in any ways he performed.

It was all -- all of it developed from the officer seeing what was in plain site to be seen and listening to the admissions of the defendant as the transaction went along.

As to appellant's contention of addiction being an illness, of course, we agree but I might say this as to his contention that you cannot constitutionally punish a status.

California since this case has -- has been tried, has it not enacted a comprehensive new program of treatment for narcotic addicts added to Section 11 to the Penal Code.

The entire program depends upon the term "addiction" as do many federal statutes regarding the entry of immigrants into this country toward drug addicts it's prohibited.

The word "addiction" is used, the word statutes -- "status" is -- the term "status" is indispensable.

The same in the deportation of drug addicts from the United States.

This status, addiction is indispensable, we contend, in the control of the use of narcotics by the user.

If we --

Chief Justice Earl Warren: And that new statute, did they have any definition?

Mr. William E. Doran: No, they did not.

Chief Justice Earl Warren: Status -- they did not.

Just addiction.

Mr. William E. Doran: That is my understanding, Your Honor, yes.

Addiction having -- one step further, a finding by the court of -- that someone is in imminent danger of becoming addicted which carries at even one step further.

And it is a process by which in a lower court -- a trial court, if it appears to the trial court that the defendant is addicted or in imminent danger of it, the cause is thereafter transferred to the Superior Court for hearings, it goes -- a determination is made and the man is sent to a hospital which is no one to be course of development for narcotic addicts.

Chief Justice Earl Warren: Under a commitment procedure?

Mr. William E. Doran: Under a commitment procedure similar to an insanity proceeding, Your Honor.

So it -- it is our most furnish contention that you control addiction of narcotics, trafficking narcotics.

The utilization of the status addict is absolutely indispensable.

Thank you.

Rebuttal of Samuel Carter Mcmorris

Mr. Samuel Carter Mcmorris: May it please the Court.

Chief Justice Earl Warren: Mr. McMorris.

Rebuttal of William E. Doran

Mr. William E. Doran: I'd like to start with most the presence of mind with Mr. Doran's last point which is a hard point which I made, Section 11 of the Penal Code deals in the treatment of these acts.

I am 100% in favor of it.

They need to be in hospitals.

I never contend that we can't treat them as a class.

In a proper approach, I said we can't treat them as criminals and let them kick this thing cold turkey and die and suffer from it.

I'm 100% in favor of Section 11 of the Penal Code and the word there, the emphasis of upon treatment.

Justice William J. Brennan: It's 11 of what code?

Rebuttal of Samuel Carter Mcmorris

Mr. Samuel Carter Mcmorris: I think it's Section 11 that would --

Justice William J. Brennan: (Inaudible) chapter?

Mr. Samuel Carter Mcmorris: Chapter -- sorry.

Chapter 11 which is exclusively a treatment thing which is what I recommend and urged, an argue is the only not of -- not -- it's not on a policy but the only proper constitutional approach of this particular problem.

Justice Potter Stewart: Is that -- is that statute cited in the briefs here or not?

Mr. Samuel Carter Mcmorris: I don't believe so, I -- I don't --

Justice Potter Stewart: -- (Voice Overlap) of the Penal Code?

Mr. Samuel Carter Mcmorris: This -- or a new -- a new chapter 11.

But it is -- as I said, though it doesn't define it which isn't too important perhaps -- though somewhat in the case of a civil or medical treatment but here -- here in the Court, there's definition aspect too.

Here, we can see or read my mind may be different.

Now, Mr. Doran I've known for years is a reasonable man but he insists that we can have addiction without compulsion.

I like to thank him --

Chief Justice Earl Warren: Without what?

Mr. Samuel Carter Mcmorris: Without compulsion, just to have it without the compulsive use, throughout the driving force to use.

That's the contention he's making here that -- this was construction legislature that addiction means habitual customary use as distinguished from compulsive use.

I think there's a distinction there.

The -- as a matter of fact, to break it down further.

I cite in my brief two New York cases, the application of Palmer and Palmer against Spaulding.

Spaulding, I think the same man Palmer.

In one case, a New York court stated that you must show compulsive use plus an actual deterioration upon the body.

I think this has to do with the doctor who was being disqualified because he was deteriorated while using the drug himself.

Another case held that the mere compulsion without a showing of deterioration is all that you had to show.

So here another court, we have the same conflict, we have in California here between the legislature of the courts because I insist that the California legislature in its only definition of addiction has said compulsive or beyond the power of control.

This is the only definition we have -- in -- is our legislature I think it's what they mean.

And that's what California legislature says an addict is.

Here, we have a court reading on a new definition in -- in the case cited, it was in -- in a vehicle code thing saying, Well, I know what the purpose of this code.

Well, the legislature does not define it and to another court, they do define it and say we -- it means compulsive use or use beyond the control.

We will say that for this purpose of this code, it -- it means only habitual customary use and this shows the conflict I suspect within the reasonable minds of the judiciary and the legislature.

Now, the same thing is true of the use of the -- of the term "use".

Mr. Doran, a reasonable man feels that a single use of -- of a narcotic is sufficient.

I think the Legislature meant a customary use.

But here again, the Dictionary, Webster has both of them as meanings for the term "use".

So here again, we have a conflict.

And as for the use beyond the influence of aspect, we have the Newbern Rule that just as the common was undefinable so -- and also because the Legislature did not show to what extent they have in mind with reference to -- to what extent drug has became common or what point it became common.

As to addiction, we don't know what the Legislature has in mind, as to what degree.

I would subject you to this felony of whether or not they -- so either they had in mind their own definition in the Welfare and Institutions Code which is a compulsive or use beyond control which is --

Justice William J. Brennan: What happens to someone convicted under this?Do they get any treatment?

Mr. Samuel Carter Mcmorris: Not at all.

Justice William J. Brennan: ust -- just to a common jail or --

Mr. Samuel Carter Mcmorris: Just to a common jail, never to a hospital.

Justice William J. Brennan: Or may when he gets to that jail, he sent to a hospital?

Mr. Samuel Carter Mcmorris: He may but I've never known of the case, Mr. Justice Brennan.

I've known many case of the kicking a cold turkey back then in the cell and we have moved him and everything else to this respect.

Justice William J. Brennan: Well, what about -- what -- you say this is a new statute which provides (Voice Overlap) --

Mr. Samuel Carter Mcmorris: I think there's new one which come out in 1961.

It provides to something that's highly different.

We've always had the power to treat them in hospital but we never used, but please put them in jail.

The one's who are enforcing the narcotics law in California are the police not the doctors.

We have a medical fact that if treatment we have a penal but the one which prosecution represented here by appellee is used for the penal.

Justice William J. Brennan: Are you telling us that you could make some kind of application to have this fellow transferred from the prison to a hospital for treatment?

Mr. Samuel Carter Mcmorris: I've never known it to be done.

I've never done, never known any other counsel has done it.

They're given a criminal treatment and to some, the civil thing has just not been used of whether or not under our new laws 1961, it will used, I do not know.

I suspect if we knock out this law, it will be used because if we know anything (Inaudible)

Now, I think it's a good thing, the compulsive.

Medical aside getting treatment but treatment of these people and the only way California will ever be required to use that law is to tell them we cannot just let them kick it cold turkey as you have the other provision here.

This is -- it's an unreasonable transportation to these people when you have a medical -- hospital here, the jail over here, those in jail are not being properly treated, I suspect.

Justice John M. Harlan: Well, does this statute --

Mr. Samuel Carter Mcmorris: What?

Justice Tom C. Clark: Excuse me.

Is the Welfare and Institution Code permit you to pick up an addict and treat them for addiction?

Mr. Samuel Carter Mcmorris: It has done so since about 37 of thereabouts.

Justice Tom C. Clark: Well, this definition then would apply to that sort of treatment, wouldn't it, the one that you suggest?

Mr. Samuel Carter Mcmorris: It is -- I'm sorry.

It is a definition in connection -- the Welfare Institution Code definition, it connects it with civil or medical treatment.

In the penal --

Justice Tom C. Clark: It's not -- it wouldn't apply to the safety and health treatment?

Mr. Samuel Carter Mcmorris: Well, I think it does apply for two reasons.

First place, the legislature does not define it in -- in the Penal Code.

And it does define it in the other code.

And secondly, when -- when the law was originally passed as a part of the Penal Code, it did define it in the same manner.

As it's shown by my -- in the appendix to my brief, the original passage of this law had -- from a court because it shows my point so well, the original vagrancy or -- or narcotics addict law in California read as follows, "Provided that --

Justice Tom C. Clark: What page is that?

Mr. Samuel Carter Mcmorris: It's on page 50 of -- of the opening brief, "Provided that a drug addict within the meaning of this Section as any person who habitually takes or otherwise use narcotics except that was such user is suffering from incurable disease or accident or injury and to whom such a narcotics are furnished, prescribe a medicine in good faith and in the course of this profession, professional practice by a position duly licensed in the State, such persons will not be held to be a drug addict.

Now --

Justice Tom C. Clark: It just appeared to me that the definition in the Welfare Code being more burden and they have to prove more --

Mr. Samuel Carter Mcmorris: Yes, it --

Justice Tom C. Clark: -- was aimed in treatment.

That's all I want to know.

I'm just wondering if that's right.

Mr. Samuel Carter Mcmorris: Well, as I said, the California Legislature does not define it into -- into one code, it does define it in the other code as so exist.

I just assume that they went to one definition to apply.

Justice William J. Brennan: Are you making -- are you -- are you suggesting that perhaps under the Welfare Code, an addict might be convicted under the Penal Code as an addict for the purpose of that Code might not qualified to a treatment under the definition of addict under the Welfare Code, is that right?

Mr. Samuel Carter Mcmorris: Well, that is apparently the contention of the -- of the appellee that we -- we have two different two classes of addicts.

One in -- in the Welfare and Institutions Code, he go to hospital, he must be under a compulsive use or beyond his control.

But under Penal Code by the court's reading in their own definition not supplied by the Legislature, he may just be a habitual customary use.

Justice William J. Brennan: So that he may or may not qualified but --

Mr. Samuel Carter Mcmorris: For treatment.

Justice William J. Brennan: -- there's a chance that he could not.

He could be convicted then yet not qualified for treatment.

Mr. Samuel Carter Mcmorris: That would -- could happen under the definition urged by -- by the -- the appellee here.

But here again as I said, since this is -- it's clearly showing of the disagreement among reasonable mind because we don't know what the Legislature had in mind.

And there -- and therefore, the -- the law is not complete in the Penal Code, but it is complete in the Welfare and Institution Code.

We have to guess in the Penal Code and Vehicle Code and so the court guessed that the Legislature had in mind a different definition on in the one code.

Chief Justice Earl Warren: Mr. McMorris --

Mr. Samuel Carter Mcmorris: Yes sir.

Chief Justice Earl Warren: -- may we go back to the -- to the instructions for just a moment.

Did the court instruct that if they found him guilty either of -- of being a user or an addict that they could convict him?

Mr. Samuel Carter Mcmorris: It was in the instruction, Mr. Chief Justice.

Chief Justice Earl Warren: And was -- there was just one count, was there?

Mr. Samuel Carter Mcmorris: Well, there was just one count both on the same count.

Actually --

Chief Justice Earl Warren: Yes.

Mr. Samuel Carter Mcmorris: -- as I thought they should have been two counts.

But --

Chief Justice Earl Warren: Yes.

Mr. Samuel Carter Mcmorris: -- there was a single count.

Chief Justice Earl Warren: It was a single count.

Mr. Samuel Carter Mcmorris: Yes sir.

Chief Justice Earl Warren: It was your point was it that the half of the jurors might have found that he was a user and the other half might have found that he was an addict and they put the two votes together and found him guilty.

Mr. Samuel Carter Mcmorris: It was at least possible although the court specifically under -- under the Thompson case which I -- an appeal I won on -- on the venue point in California, it must now instruct the jury that they must all go one way or the other.

Chief Justice Earl Warren: Yes.

Mr. Samuel Carter Mcmorris: But if they do understand that instruction -- we have the one count.

In fact, we have all three pleaded in one count, influence, use and addiction.

All three had pleaded in one count.

So they considered one count and whatever the court instructs them and they could use area here.

I suspect they still could go seek and search this.

Well, the court did in all fairness specifically instructed that they must go all one or the other.

You may have understood that.

But we don't know which it was and we don't know which -- which it was under -- under the pleading.

Justice Hugo L. Black: Where is that instruction?

Mr. Samuel Carter Mcmorris: Let me see.

(Inaudible)

They're on page 100 and informed by --

Chief Justice Earl Warren: Mr. Doran.

Mr. Samuel Carter Mcmorris: They begin on page 107.

Page 103, we have instruction as to the use of addiction.

First paragraph of page 105 apparently that all must agree to the same particular act or status or condition.

Rebuttal of William E. Doran

Mr. William E. Doran: And also on page -- page 102, they combined the two, did they not?

You will take note that it is a misdemeanor for a person either to use narcotics or to be addicted to the use of narcotics unless the used or being addicted to narcotics was administered to use under the direction of a license person.

Rebuttal of Samuel Carter Mcmorris

Mr. Samuel Carter Mcmorris: They are combined without the explanation that they could -- that they could had to go in one way at that point.

I think it would have helped to plea them a separate counsel.

I've so argued that.

And I think we have actually three laws here and -- and yet the -- the counsel could have only one count.

Justice Hugo L. Black: Why does the charge on 105 not covered at this point, but you did not ask for a different charge that was refused?

Mr. Samuel Carter Mcmorris: I beg your pardon, Mr. Justice Black?

Justice Hugo L. Black: Why does this charge on 105 doesn't cover the point that you suggested here unless you can show us that you asked for a different kind of charge explaining?

It is plainly isn't it that they must find it under one --

Mr. Samuel Carter Mcmorris: Yes.

And --

Justice Hugo L. Black: -- all unanimous.

Mr. Samuel Carter Mcmorris: Yes, Mr. Justice Black.

And I -- I don't recall whether -- in this case, I didn't make this point as having others that the -- that the disconfusion.

I think I did on the -- on the appeal to the Appellate Department.

I didn't advanced it here that they should have almost certain did that they should have pleaded separately but they didn't.

I did ask to request that and argue it on my first appeal.

I don't argue it here.

I didn't think it was substantial enough frank -- frankly before this Court but it may have been.

And but -- it does in fact that tell the jury they must go one way or the other but still we don't know which -- which it was filed.

Justice Potter Stewart: I think -- unless you have already filed -- what's you're looking for is on page 105 of the record.

Mr. Samuel Carter Mcmorris: Yes, first paragraph on page 105.

Justice Potter Stewart: Right.

Mr. Samuel Carter Mcmorris: I'd like to answer too a question earlier of Mr. Justice Brennan as to whether or not a person could be presented up to -- the appellee could be immediately arrested in another county or even in the same county under the part of the instruction which is scratched out here is California law that this status is presumed to exist and the burden of proof is upon the defendant to disprove this presumption which means that if I do three months and get out tomorrow, I presume to continue to be an addict and I could be arrested when I hit the streets even though they may not as a fact permitted to do it.

This count occur under the law because my condition is presumed to continue indefinitely under these instructions which are here but scratched out because the court found that it didn't apply because they had no previous conviction (Voice Overlap) --

Justice William J. Brennan: But do they in fact prosecute a second time prediction except as they can have evidence of the subsequent user?

Mr. Samuel Carter Mcmorris: No, it comes pretty close to this.

They see this -- it's the same track.

These tracks last a lifetime Mr. Justice Brennan.

Justice William J. Brennan: Yes.

Mr. Samuel Carter Mcmorris: When the person used it -- the substance for years, these tracks last for lifetime and at same track and convict him a thousand times.

They don't have to find the place (Voice Overlap) --

Justice William J. Brennan: But I thought -- I thought what you told was that this would not be done that actually if they're going to prosecute him the second time, there must be a new hole in the track.

Mr. Samuel Carter Mcmorris: This is not at all be acquired under the law.

They may or may not be.

And that who can tell what hole is new and how long it has been there, where they got it.

But essentially, it is the track of -- that they convict the addiction for the single hole and as the appellee said it's not addiction.

But we have here the track plus the hole at any event.

Justice Tom C. Clark: But --

Mr. Samuel Carter Mcmorris: And --

Justice Tom C. Clark: -- they (Inaudible) according to the experts for 20 days that --

But to -- as a practical manner, I mean as a possible manner under the law of the man (Inaudible) as treated if he doesn't like it.

Justice William J. Brennan: We don't have that --

Mr. Samuel Carter Mcmorris: -- court as in other situation.

Justice William J. Brennan: We don't have that case here.

Mr. Samuel Carter Mcmorris: No, but it's on the face of law.

And the interpretation of -- of addiction by the California court that the condition presumed to exist which means that -- that -- and the burden of proof is in you.

So if you want show any previous con -- of conviction, you must now show that you're no longer an addict.

And I think this is hardly frivolous to California law.

In which why I stated that it can't be a thousand times punished for the same condition, as distinguished from new marks though as the practical matter, they -- they may wait for a new mark but it's not required under the law.

Justice Hugo L. Black: Well, could they prosecute him (Inaudible) for the same thing if you pleaded formal jeopardy?

Is that your contention?

Mr. Samuel Carter Mcmorris: Well, the -- as the state of appellee here, they may not show and -- and all they may not show that the condition continued over the same period.

In other words, if -- if I'm arrested today and due in 3 months -- 30 days or 90 days which the minimum then if I get arrested a day after I get out of jail, this my addiction which continue after I got out so we have a different cure but it's the same of addiction.

Justice Hugo L. Black: That's not this case, isn't it?

Mr. Samuel Carter Mcmorris: Not squarely so because this one, I thought the judge did not give these instructions and scratched it out but my point is on the face of the law in California interpretation.

We have a law which permits a thousand prosecutions for the same condition.

Mr. Samuel Carter Mcmorris: Well, it seems to me that we have adherent things and -- and that a condition if a man robbed a bank, he has to rob a bank again or if he robbed a person, he has to rob a person again.

Here, we're (Voice Overlap) --

Justice Hugo L. Black: Suppose, he had to rob it again, they could start to prosecute him the second time.

He didn't plead it.

He wouldn't have in his case.

Mr. Samuel Carter Mcmorris: That is true except that it's not adherent in the manner in which is adherent here because he said -- we have a presumptions and present in the law that this man's condition last a lifetime, and this is implicit in the law.

So, we don't have such a presumption with rob -- robbing a bank or -- or rape of murder or arson.

Justice Hugo L. Black: They said that it last a lifetime?

Mr. Samuel Carter Mcmorris: That is true on --

Justice Hugo L. Black: You mean it's implicit that a man can never recover from this thing?

Mr. Samuel Carter Mcmorris: Under our decision and I think under -- under medical evidence that -- that -- which is presented here that -- and there -- there's no cure for narcotic.

We've cost inform of the -- many times, people gone to the -- to the federal institution that have gotten right back or they have to expensive cures.

And maybe 5% or 1% are even thought to be cured or after expensive medical -- medical care.

Unknown Speaker: (Inaudible)

Chief Justice Earl Warren: Well Mr. McMorris, how can it be opened to you to plea double jeopardy when -- when this man has only been tried once?

Mr. Samuel Carter Mcmorris: Well, Mr. -- Mr. Chief Justice, in -- my point is I'm not pleading it but showing how the law inherently lends itself to a double -- my point here is that the law inherently lends itself to double punishment before he can -- than any continued status.

Chief Justice Earl Warren: Well, isn't that -- isn't that only often the people who are being punished twice or an attempt has been made to punish him twice?

Mr. Samuel Carter Mcmorris: As I understand the law that if it's apparent on the face of the law that -- that I -- that I -- I could show beyond constitutional face of the law.

Now, in this case, there's no double application.

I'll concede immediately up to this particular -- to this particular appellate.

There's no double application but on -- the law inherently amends itself to -- to any addict being treated -- being punished all his life for the condition which we admit by medical evidence, is a -- it's perhaps a lifetime condition once acquired.

I think the solution is to treat this illness and -- and to -- and to try to take (Inaudible) and educate people against it and prevent it ever happened.

Once it happened on the present medical knowledge, we have a lifetime criminal.

It's what we have in the same condition and this is inherent.

I think --

Chief Justice Earl Warren: Mr. Doran, may I ask you a question please about the procedure.

I understand a year so go, there was on the valid statute to -- to give the Court of Appeals jurisdiction over the Appellate Division so the Superior Court, what happened to that?

Rebuttal of William E. Doran

Mr. William E. Doran: That's Your Honor -- of course, it wasn't in effect at the time of this case.

But I sub -- first of this year, it went into effect and now by petition in the Appellate Department, it is possible to go from there to the District Court of Appeal if they per -- if they allow it in the reference.

If they do not permit the reference, there is a provision that goes to District Court of Appeal and asks for such reference.

If granted, it can then go in the regular change of the time.

Justice William J. Brennan: What happens to the habeas corpus proceeding in this case?

Mr. William E. Doran: In this case?

Justice William J. Brennan: In this case.

Mr. William E. Doran: They were both denied Your Honor on application.

Justice William J. Brennan: Well, how far did it go I mean?

Did it just go to the -- to a --

Mr. William E. Doran: One was filed as I understand in the District Court of Appeal of California --

Justice William J. Brennan: Yes.

Mr. William E. Doran: -- and another in the Supreme Court of California.

May I say this Mr. Justice Brennan?

In regard to those -- to that aspect of going to the higher courts, those petitions are filed merely as -- as we know on a petition of -- of the defendant.

The true record is not before that court when they determine if on application to deny that.

Justice William J. Brennan: I see.

Mr. William E. Doran: It makes difficult sometimes with the petitioner.